from the not-how-it-works dept

We've written for some time about the scourge that is publicity rights laws and the fairly blatant way in which they tend to butt up against the First Amendment. While famous folk certainly do have the right to reserve the use of their likeness and names from those that would use either for commercial purposes, too often these laws are instead used to silence non-commercial speech, or speech that revolves instead around journalistic efforts. A famous person, for instance, cannot use publicity rights laws to keep a newspaper from printing factual information about them, or a movie maker from producing a documentary about them. This is First Amendment 101.

But it seems some in the legal field skipped that class. One judge in Alabama has decided to shoulder the First Amendment to one side and favor instead the state's publicity rights laws to allow a lawsuit against the producers of famed podcast S-Town to move forward.

Serial Productions, This American Life Public Benefit Corporation and journalist Brian Reed must face a lawsuit for allegedly violating a dead man's likeness in S-Town, the controversial but acclaimed podcast that has been downloaded more than 80 million times. An Alabama judge's rejection of a dismissal motion on Friday is almost certain to prompt concern among media lawyers.

At issue is John McLemore, the man who had originally emailed This American Life about a supposed murder in his hometown. While nothing came of that claim itself, McLemore eventually committed suicide. That suicide was the impetus for S-Town, with the podcast diving deep into McLemore's life and death.

In other words, S-Town became a docuseries of sorts about McLemore. Now the estate is suing under Alabama's onerous publicity rights laws. Serial Productions, producers of S-Town, sought a dismissal on First Amendment grounds, because of course it did.

"Because S-Town is both a public interest and an artistic work, the Estate’s claims must fail," stated Serial Productions and other defendants in a motion to dismiss. "First and foremost, the imposition of liability under the Act in connection with S-Town would violate the First Amendment free speech rights of the Defendants. Imposition of liability also would violate the Act itself. ... S-Town, a 2017 Peabody award winning podcast, is specifically exempted under the Act as a public interest documentary work. It is also specifically exempted as an expressive and artistic work. The creation and distribution of S-Town is exactly the type of constitutionally-protected speech the Alabama legislature took great pains to exclude from liability under the Act."

The judge, however, has allowed the case to move forward. Without spending any real time taking on the First Amendment claims generally, the judge instead points back to the publicity rights law in Alabama and suggests that because S-Town has advertisements within it, it therefore qualifies as a commercial use of McLemore's identity. This defies all kinds of previous caselaw indicating that advertisements don't suddenly make expressive speech commercial speech. And, frankly, such a view would seem to undermine all kinds of media enterprises that advertise as part of their business model, from newspapers to news on television.

"Taking these allegations as true, the Court cannot conclusively determine that Defendants' use of McLemore's indicia of identity is non-actionable as the contents of any and all the alleged advertisements or promotions allegedly using McLemore’s indicia of identity are not before this Court. Although Cargile refers to the S-Town podcast generally in his counts, the Court assumes that Plaintiff’s general reference to the podcast includes both S-Town’s expressive contents and the advertisements that interject at regular intervals throughout each episode as well as any other advertisements or promotion materials related to S- Town. Therefore, Cargile has stated a plausible claim for relief under the Act, and Defendants’ motion to dismiss is due to be denied."

Now, this is just a ruling on a motion to dismiss, but it's bad nonetheless. Imagine a world where the famous could bar journalistic outlets from reporting or doing documentaries on them if those same outlets sell advertising? Is that a better or worse place than a world properly governed by the First Amendment and protected speech?

One hopes the legal team for Serial Productions can educate the court through the trial phase as to why it's speech is protected. Otherwise, the journalism and documentary industries are in for a world of trouble.